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I ask my outside law firms the obvious question: “Will we win at trial?”
I always hear the same responses: “We haven’t yet finished discovery. We don’t know.” Or: “Juries are always unpredictable.” Or: “I’ll get back to you five minutes after the jury renders a verdict.”
It’s exactly the way one should hedge one’s bets, but it’s not what the questioner is looking for.
So, too, with COVID-19. Will hydroxychloroquine treat this problem? “We haven’t yet finished the clinical trials. And, like Sergeant Schultz, we know nothing until five minutes after we see the results of the clinical trials.”
That’s crap. You know something. You’re just hedging your bets, and you’re afraid to speak.
So I asked a couple of physicians to go out on a limb for me — anonymously, of course — and tell me what’s really going to happen, even though we of course don’t know anything until the results come in. Here’s what I heard.
COVID-19 causes serious trouble breathing — physicians call it “acute respiratory distress syndrome,” but I’m leaving the fancy words to people with medical degrees. Serious trouble breathing has been causing people to be admitted into intensive care units ever since they invented intensive care units. As you would expect, because this has been a problem for decades, physicians have been studying it for decades. But they haven’t yet found a cure. There’s no decent medication for the problem. Many, many drugs don’t work. In the words of one recent study: “We found insufficient evidence to determine with certainty whether corticosteroids, surfactants, N‐acetylcysteine, statins, or beta‐agonists were effective at reducing mortality in people with” acute respiratory distress syndrome. I don’t even know what all those words mean, but you can tell it ain’t good.
There’s some evidence that if you turn up the ventilator a little higher, that helps patients. But, for the most part, physicians have spent decades trying to cure acute respiratory distress, and no one has come up with anything that works.
President Donald Trump says that hydroxychloroquine might work. President Trump tells us that he’s a smart guy, and he feels good about hydroxychloroquine. Dr. Anthony Fauci, director of the National Institute of Allergy and Infectious Diseases, then says that he’d be more cautious; he’d wait for the results of the clinical trials to come in.
Translation: “This is way too optimistic. I have to correct the president in a way that won’t get me fired. We’ve been working on the problem of breathing difficulties for decades, and no one has yet solved it. What are the odds that a drug that has been on the market for 50 years — and is not aimed specifically at this virus — is going to be the cure for COVID-19? It’s conceivable, of course, but the odds are overwhelmingly against it.”
Not only that: About half of the patients with COVID-19 who are put on ventilators die. Suppose a drug works. Perhaps it reduces the mortality rate from 50 percent to 40 percent of those put on ventilators, which would be a great treatment. Even with a 40 percent mortality rate, we still have a heck of a problem on our hands. Scientists hit singles and doubles more often than they hit home runs; it’s very unlikely that we’re going to unearth a miracle.
How about the other ideas for treating COVID-19? They’re interesting, but they’re all crapshoots. Don’t count on ’em.
How about a vaccine? That’s far more likely. As Fauci said, proving that a vaccine is safe and effective will take a year to 18 months. A year to 18 months is a long time to wait.
After the vaccine is developed, it will not be 100 percent effective. Perhaps it will be 70 or 80 percent effective.
So how will this all play out?
COVID-19 will not disappear. It exists, and it will exist for a long, long time.
But COVID-19 appears to be seasonal. The virus appears to spread far less in warm weather.
Thus: We now have flu season every year. Flu season arrives in the winter. Some people choose to get a vaccine, which is not 100 percent effective. Some people choose not to get a vaccine. Every year, the flu kills tens of thousands of people.
Starting two years from now, we will have COVID-19 season every year. It will arrive in the winter. Some people will choose to get a vaccine, which will not be 100 percent effective. Some people will choose not to get a vaccine. If enough people take the vaccine to create “herd immunity,” then relatively few people will die from COVID-19. Otherwise, every year, COVID-19 will kill tens of thousands of people.
And we’ll live with it, just as we live with the flu, and people dying in car accidents and plane crashes, and the many other deaths that regularly occur in the background noise of society.
But don’t expect a miracle cure in the next month or two.
The jury won’t come back by then.
Mark Herrmann spent 17 years as a partner at a leading international law firm and is now deputy general counsel at a large international company. He is the author of The Curmudgeon’s Guide to Practicing Law and Drug and Device Product Liability Litigation Strategy (affiliate links). You can reach him by email at inhouse@abovethelaw.com.